Indian Councils Act 1861

The Indian Councils Act 1861 was passed by British Parliament on  1st August 1861 to make substantial changes in the composition of the Governor General’s council for executive & legislative purposes. The most significant feature of this Act was the association of Indians with the legislation work.

Reasons for Enactment of Indian Councils Act

The Government of India Act 1858 had introduced significant changes in the manner in which India was governed from England, however, it did not alter in any substantial way the system of government that prevailed in India. Further, in the aftermath of the Mutiny of 1857, there was a general perception in England that it would be very difficult to secure the government in India without the cooperation of Indians in administration. These were the main reasons behind enacting some legislation which could overhaul the system of administration in India. Some other reasons were as follows:

Centralized law making was defective

The Charter act of 1833 had centralized the legislative procedures and deprived the governments of Madras and Bombay of their power of legislation. The idea behind centralizing the law making was secure uniformity of laws in the whole territory of East India Company but this system proved to be defective. It had only one representative each of the four provinces and it failed to make laws suiting to local conditions. Thus, there was need to allow the provinces to make laws for themselves.

Governor General in Council was overburdened

The Governor General in Council was failing in its legislative functions and was not able to work satisfactorily die to cumbersome procedures leading to delay in enactments.

Absence of representation

It also had no representation of the people in it. There was a growing demand that some representative element should be introduced in legislative council.

Key Provisions

Expansion of executive council of Governor General / Viceroy

The executive council of Governor General was added a fifth finance member. For legislative purpose, a provision was made for an addition of 6 to 12 members to the central executive. At least half of the additional members were to be non-officials. These members were nominated by the Viceroy for the period of two years. Further, the Governor General / Viceroy had been given some more powers such as:

• He was authorized to nominate a president to preside over the meetings of the Executive council in his absence.
• He had the power of making rules and regulations for the conduct of business of executive council.
• He could create new provinces for legislative purposes and to appoint Lieutenant Governors for them. He was also empowered to alter, modify or adjust the limits of the provinces.
• He could promulgate ordinances, without the concurrence of the legislative council, during and emergency.
• Though the central council was empowered to legislate on all subjects concerning all persons and courts in British India but every bill passed required the assent of viceroy.
• He could withhold his assent or exercise his veto power if he felt that the bill affected the safety, peace and interest of British India.
• He had to communicate all laws to secretary of state for India who could disallow them with the assent of the crown.

Introduction of Portfolio System

The Act empowered the Governor-General to delegate special task to individual members of the Executive council and hence all members have their own portfolio and death with their own initiative with all but the most important matters. This was the first beginning of Portfolio system in India.

Process of Decentralization

The Governments of Bombay and Madras were given the power of nominating Advocate-General and not less than 4 and not more than 8 additional members of the Executive council for purpose of legislation. These additional members were to hold office for two years. The consent of the Governor and the Governor-General was made necessary for all legislation passed or amended by the Governments of Madras and Bombay. Further, the act provided for the establishment of new legislative councils for Bengal, North-Western Frontier Province and Punjab, which were established in 1862, 1866, and 1897 respectively.

No distinction between Central and Provincial subjects

No distinction was made between the central and provincial subject. But measures concerning public debt, finances, currency, post-office, telegraph, religion, patents and copyrights were to be ordinarily considered by the Central Government.

Critical Examination of the Indian Councils Act 1861

The Act of 1861 was important in the constitutional history because it enabled the Governor-General to associate the people of the land with work of legislation. And by vesting legislative powers in the Governments of Bombay and Madras which ultimately culminated in grant of almost complete internal autonomy to the provinces in the 1937.

However, the legislative councils were merely talk shops with no power to criticize the administration or ask for some information. Their scope was fixed in legislation purpose alone; they had no right to move some kind of vote of no confidence. Further, there was no statutory / specific provision for the nomination of Indians.

This nomination power of the Viceroy could be used only to placate the princes who could help the British to keep their stronghold. Further, the ordinance making power of the Governor General allowed him to make laws it his own whim. In summary, the Indian Councils Act 1861 failed to satisfy the aspirations of the people of India.